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Published on May 4, 2023.
What is the line between off-duty activities that are captured by your conduct policies - and subject to your complaint process - and behaviours away from the sport environment that fall outside the scope of these policies?
In short – when are your participants “your” participants?
While there is no clear-cut answer to this question, a recent decision from the employment context provides some helpful insight when considering off-duty conduct and the possibility of sanctions through a sport organization’s disciplinary policies.
Scenario
Consider this situation -
An athlete submits a complaint alleging that another athlete (the Respondent) from another team within your organization has acted inappropriately. The allegations include sexual maltreatment and appear to violate your Code of Conduct and the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS).
These individuals are not friends, play on different teams, do not often interact in the sport environment, and do not socialize outside of their team activities.
The Respondent had posted on social media earlier in the week that they were selling their vehicle. The athlete was sent the post by a mutual friend and expressed interest in buying the car.
The Respondent suggested that they take a test drive after practice one evening.
The athlete alleges that during the test drive, the Respondent made unwanted sexual advances that were clearly rejected. These advances included attempting to hold the hand of the athlete, asking them to be “friends with benefits”, to “fool around”, and touching their body without their consent.
Accepting for the purpose of this exercise that the actions occurred and violate the applicable Code of Conduct and the UCCMS, does this activity fall within the scope of your disciplinary process?
When does off-duty conduct fall under your policies?
A similar scenario set out above was recently considered by an arbitrator in Alberta in Corporation of the City of Calgary v Amalgamated Transit Union, Local 583, 2023 CanLII 20867 (AB GAA). There, the arbitrator had to decide whether an employer was justified in terminating the employment for cause of their employee because of allegations of off-duty sexual harassment.
Traditionally, employers did not have jurisdiction over their employees when they were outside of work, but with the rise of social media and the blurring of work/off hours, this distinction has faded to some extent.
According to the longstanding legal test for determining whether an employer was justified in taking disciplinary action against their employee for off-duty conduct, an employer must show that the behaviour:
Employers do not have to prove every element of the above criteria. If the impact is significant enough, proving just one of the single criteria may justify discipline.
Importantly, when arguing that there has been a negative reputational impact, an organization does not have to provide clear evidence of the effect on its reputation. It is enough that the conduct could have reasonably hurt the reputation of the organization, with the specific question to answer is, “What might a fair-minded and well-informed member of the public may think about the off-duty conduct?”
In the City of Calgary, the arbitrator found that the inappropriate behaviour of the Respondent had harmed the employer’s reputation and operations. The Respondent occupied a position of trust and worked closely with the public, including vulnerable individuals. The arbitrator found that the Respondent’s behaviour would make other members of the organization reluctant to work with the employer.
As a result, the termination of their employment was upheld.
Lessons for Sport Organizations - What do your policies say?
When drafting your policies and contemplating this type of scenario, it is critical to assess and identify the scope of your Code of Conduct or other policies setting out the expectations for your participants. The scope of any policy setting out standards must be clearly stated, identifying both who is subject to the policy but also when these individuals are subject to the policy requirements.
The typical scope includes conduct during the business, activities, and events of a sport organization. This scope should extend to conduct outside of the sport environment when the conduct has the potential to adversely affect the work and sport environment or the reputation of the sport organization itself.
Clearly defining when your policies apply and specifically covering conduct occurring outside the sport environment that could adversely affect the reputation of your sport organization is critical. Further, it is important that anyone who may be subject to the Code - your participants - understand the scope of the policy and that they can face disciplinary action for activities outside of sport. We recommend that your policy apply broadly to all activities which may involve or engage the sport organization, particularly in light of the prevalence of social media.
Unlike the employee/employer relationship, sport organizations have a broader range of participants who may fall under their policies, from athletes and coaches to spectators and officials. However, there are significant similarities which assist in the assessment of jurisdiction, including the potential for reputational harm to an organization because of the actions of a participant who may be affiliated with a sport.
While you may still see a challenge that the organization does not have jurisdiction to hear a complaint during the initial stage of a disciplinary process, having a well-defined scope and providing education to your participants for the expectations of their behaviour on and off the field of play can help ensure that you can pursue discipline for inappropriate behaviour outside the sport environment. This is critical to ensure your organization is doing everything within its control to provide a safe environment for all involved, whether within the sport environment or within the broader extension of this environment.
If your organization is seeking guidance on the scope of your Code of Conduct, please send us a note at hello@sportlaw.ca.
